Constitutional choice for the control of water pollution

Before passage of the Clean Water Act, water pollution was controlled by the common law of nuisance and the law of water rights. Had the common law not been superseded, it might have provided more ecologically sound pollution control than has occurred under the command-and-control statutory regime. The Clean Water Act imposes mechanical definitions and is subject to political interference. In contrast, the principle of the common law lies in its evolutionary and competitive nature, which is consistent with the market process. Meiners thanks the Political Economy Research Center of Bozeman, Montana for support during his visit in 1992. We thank Terry Anderson, Robert Natelson, Jane Shaw and Richard Stroup for helpful comments. We owe a large intellectual debt to Bob Staaf, who made us think about the relationship between competitive markets and the common law.